Experts: Snooping on spouse with spyware not recommended

by Eric Walter

If you’re thinking about using technology to secretly keep tabs on your mate, you should probably think again.

That’s the stance of a number of lawyers practicing divorce and family law.

Peter Pullano, a Rochester-based attorney of the firm Tully Rinckey PLLC, said he’s seen cases where suspicious spouses secretly install so-called spyware on their partner’s digital devices to track communications and movements. Whether he’s representing the snooper or the snooped on, his advice to them is the same: Don’t do it.

“It’s probably not going to make a difference in court,” he said. Spying on another person — even if it is your spouse — can be illegal and often brings elevated levels of heartache and acrimony into a situation where the couple may have already decided to separate anyway.

Mario Cometti, also with Tully Rinckey, concurred. Not only is data gathered surreptitiously by spyware likely illegal, it is also likely inadmissible in court if wrongdoing actually is uncovered, he said. If facing off against another attorney who tried to introduce such evidence, Cometti said his path would be clear: “I would ask the court to preclude admission of the evidence and I’d also seek sanctions,” he said.

Lisa Sadinsky, a Rochester-based family law attorney, echoed that sentiment. Courts, she said, will generally find a way to punish the snooping spouse in cases involving illicitly installed spyware. “It’s wrong, number one,” she said. “And you might not like the ruling of the court.”

Josephine Wolff, a cybersecurity and public policy expert at Rochester Institute of Technology, said that while the laws regarding what is and is not legal in terms of digital technology can vary state to state, “it’s dubious whether it’s even legal to be reading a spouse’s email or tracking their car.”

It isn’t just evidence of cheating that snooping spouses may seek to uncover, Cometti said. For couples considering or already in the process of splitting, information about possible hidden finances or communications between a partner and divorce attorneys can also be targeted.

It also isn’t just spyware that those going through splits with their significant other need to be wary of, Cometti said. Some exes or soon to be exes have guessed or stolen their partners passwords to snoop on their email or social media accounts. When speaking with a client considering divorce, “one of the first things I do is sternly recommend (that clients) change their passwords,” he said.

Sadinsky agreed. “I have told most of my clients upon being retained: Shut down Facebook,” she said.

Wolff said that who does and does not have access to email and social media accounts is an issue that couples have to decide for themselves.

Check your apps

According to Tully Rinkey PLLC, signs to look for include strange behavior from your device that may include unexplained spikes in data or battery use; the presence of software that is not familiar to you and that you don’t remember installing; someone borrowing your device or taking it in for what seems like unnecessary repairs; and a spouse or ex having knowledge about you that they could not have gleaned any other way.

]]>http://www.tullylegal.com/albany-ny/articles/snooping-spouses-tully-rinckey-legal-experts-weigh-in-on-new-spyware/feed/0Cometti Comments on Liberty Ridge Farm Same-Sex Wedding Controversyhttp://www.tullylegal.com/albany-ny/articles/cometti-comments-on-liberty-ridge-farm-same-sex-wedding-controversy/
http://www.tullylegal.com/albany-ny/articles/cometti-comments-on-liberty-ridge-farm-same-sex-wedding-controversy/#commentsMon, 01 Feb 2016 14:20:53 +0000Tully Rinckey PLLChttp://www.tullylegal.com/albany-ny/?p=21182Liberty Ridge Farm controversy Mario Cometti is a family law and employment attorney with the firm of Tully Rinckey, and he joins us to shed some light on the legal issues at work in a case like this one.

]]>http://www.tullylegal.com/albany-ny/articles/cometti-comments-on-liberty-ridge-farm-same-sex-wedding-controversy/feed/0“You have to change the entire system,” Cometti On Skelos Rulinghttp://www.tullylegal.com/albany-ny/articles/you-have-to-change-the-entire-system-cometti-on-skelos-ruling/
http://www.tullylegal.com/albany-ny/articles/you-have-to-change-the-entire-system-cometti-on-skelos-ruling/#commentsMon, 14 Dec 2015 19:14:38 +0000Tully Rinckey PLLChttp://www.tullylegal.com/albany-ny/?p=21089Local lawmakers react to Dean Skelos ruling ALBANY, NY (NEWS10) – Many lawmakers said there needs to be term limits for leaders and more people involved with budget talks. A former advisor to the Moreland Commission said the pendulum of …

Local lawmakers react to Dean Skelos ruling

ALBANY, NY (NEWS10) – Many lawmakers said there needs to be term limits for leaders and more people involved with budget talks.

A former advisor to the Moreland Commission said the pendulum of power always swings back to voters because they’re the ones who ultimately decide who works in this building.

It’s interesting to listen back to the words of Preet Bharara. He had said I’m going to disrupt the three men in a room”, said President of League of Women Voters Barbara Bartoletti.

And it’s now strike two. A jury found former Senate Leader Dean Skelos guilty of bribery, extortion, and conspiracy.

These are three words that Barbara Bartoletti said have been associated with New York’s most powerful politicians for too long.

“Albany has to stop being for sale to the highest bidder and right now Albany is still for sale to the highest bidder”, said Bartoletti.

But the convictions of two legislative leaders this year might be the catalysts for change.

Many lawmakers are calling for leadership term limits and pension reforms because right now both Silver and Skelos can still collect a pretty penny.

“If they are found guilty of a crime, breaking the law, those elected officials should not be eligible for pension programs after office”, said Senator George Amedore.

“These people in leadership positions have too much control over the budget and deals that are done and the governor really is the one that has enabled this system to continue”, said Assemblyman Brian Kolb.

Bartoletti agrees we cannot let the governor off the hook but she says changing the system in Albany isn’t necessarily up to lawmakers.

“You can’t let the public off the hook either the public needs to participate in their government, get out and vote”, said Bartoletti.

An attorney who used to work at the capitol reminds people that voting is a very powerful right.

“You have to vote the people out, you have to change the entire system”, said Attorney Mario Cometti.

The Independent Democratic Conference and the Assembly Republican Conference tell me they have repeatedly put forth an ethics reform package so it will be interesting to see what the governor includes in his 2016 budget next month.

]]>http://www.tullylegal.com/albany-ny/articles/you-have-to-change-the-entire-system-cometti-on-skelos-ruling/feed/0“Best In Class Law Firm”http://www.tullylegal.com/albany-ny/testimonials/best-in-class-law-firm/
http://www.tullylegal.com/albany-ny/testimonials/best-in-class-law-firm/#commentsFri, 06 Nov 2015 14:48:25 +0000Tully Rinckey PLLChttp://www.tullylegal.com/albany-ny/?p=21047“I was fortunate to be represented by Mario Commetti for my recent divorce and could not be more pleased with the outcome. Everyone at the firm handled my case with white gloves and made a stressful life experience manageable and …

]]>“I was fortunate to be represented by Mario Commetti for my recent divorce and could not be more pleased with the outcome. Everyone at the firm handled my case with white gloves and made a stressful life experience manageable and less overwhelming. By far best in class law firm and certainly my law firm for life! I have recently joined the firm as a Business Operations Manager to help more clients encounter the level of service and expertise that I was given!” – J.P. on Partner Mario Commetti. Prior results do not guarantee similar outcomes

]]>http://www.tullylegal.com/albany-ny/testimonials/best-in-class-law-firm/feed/0Change in How Military Views PTSD Dischargeshttp://www.tullylegal.com/albany-ny/articles/change-in-how-military-views-ptsd-discharges/
http://www.tullylegal.com/albany-ny/articles/change-in-how-military-views-ptsd-discharges/#commentsMon, 05 Oct 2015 14:04:04 +0000Tully Rinckey PLLChttp://www.tullylegal.com/albany-ny/?p=21013Ask the Lawyer: after-discharge PTSD diagnosis Q. I received an other-than-honorable discharge years ago. I served in Vietnam and was diagnosed with post-traumatic stress disorder after I was discharged. Can I get my OTH upgraded? A. There has been a …

Ask the Lawyer: after-discharge PTSD diagnosis

Q. I received an other-than-honorable discharge years ago. I served in Vietnam and was diagnosed with post-traumatic stress disorder after I was discharged. Can I get my OTH upgraded?

A. There has been a sea change in how the military views post-traumatic brain disorders, affording many Vietnam veterans their best shot at upgrading less-than-honorable discharges prompted by factors related to this condition. Consequently, Boards for Correction of Military and Naval Records are now more attuned to applications from Vietnam veterans seeking discharge upgrades. Indeed, in 2014, former Defense Secretary Chuck Hagel issued guidance to the military records correction boards to give “[l]iberal consideration” to petitions from veterans seeking discharge upgrades whose service treatment records indicate symptoms of PTSD.

What’s more, just because a Vietnam vet’s service record doesn’t mention PTSD, doesn’t mean a correction board can ignore indications that such a condition existed at the time of discharge. The 2015 Defense Authorization Act directs that correction boards have a member who is a clinical psychologist or psychiatrist, or a physician “with special training on mental health disorders,” when reviewing applications from vets who suffered from a mental health disorder while serving and are seeking to upgrade a discharge.

But just as a PTSD diagnosis can’t automatically save a service member from a court-martial conviction, that diagnosis will not automatically compel a correction board to upgrade an adverse discharge. You still must prove that the adverse discharge resulted from an error or injustice.

In a 1999 case, the Board for Correction of Naval Records refused to change the “under honorable conditions” discharge of an applicant who had served in Vietnam in 1971 and was diagnosed with PTSD decades later. While serving, he had received five nonjudicial punishments and his conduct and proficiency averages were below requirements for a fully honorable separation. Veterans Affairs Department medical records also showed he had a long-term heroin addiction. The board concluded: “While PTSD and drug addiction may be considered mitigating factors, neither excuses misconduct.”

In contrast, in a 2003 case, the Air Force Board for Correction of Military Records granted relief to an applicant who had received a bad-conduct discharge for submitting false travel vouchers with a total value of less than $900. The conviction came years after he had served as a medical photographer for air crashes in Vietnam. He was later hospitalized for PTSD, which was attributable to his former job.

The board noted that on top of a record showing he had served 17 years of generally excellent duty and had accepted responsibility for his misconduct, the stress created by his duties “was clearly mitigating.” As such, the board recommended upgrading his discharge to general (under honorable conditions).

Vietnam veterans who have PTSD and are interested in receiving a discharge upgrade should consult with a military law attorney. An attorney can help establish to a BCMR or BCNR that the veteran’s discharge was the product of an error or injustice that was connected to their PTSD.

Mathew B. Tully is a veteran of the wars in Iraq and Afghanistan and founding partner of Tully Rinckey PLLC (www.fedattorney.com). Email questions to askthelawyer@militarytimes.com. The information in this column is not intended as legal advice.

]]>http://www.tullylegal.com/albany-ny/articles/change-in-how-military-views-ptsd-discharges/feed/0Ask the Lawyer: Small Businesses and New Overtime Regulationshttp://www.tullylegal.com/albany-ny/articles/ask-the-lawyer-small-businesses-and-new-overtime-regulations/
http://www.tullylegal.com/albany-ny/articles/ask-the-lawyer-small-businesses-and-new-overtime-regulations/#commentsMon, 17 Aug 2015 13:49:54 +0000Tully Rinckey PLLChttp://www.tullylegal.com/albany-ny/?p=20998Mathew Tully’s Ask the Lawyer column: Preparing for new overtime regulations Question: I own a small business. What do I need to do to prepare for the new overtime regulations the Obama administration has proposed? Response: The Fair Labor Standards …

Question: I own a small business. What do I need to do to prepare for the new overtime regulations the Obama administration has proposed?

Response: The Fair Labor Standards Act (FLSA) and the New York Labor Law (NYLL) have long been the bane of employers. These laws require all employees who do not fall within very limited exemption categories to receive overtime pay for hours worked exceeding 40 hours per workweek. From the complexities involved in determining who is and is not exempted from these laws to the inordinate awards employees can receive through litigation, countless employers have struggled with the FLSA and NYLL.

That struggle will only get harder with the U.S. Department of Labor’s proposed FLSA regulations that were published in the Federal Register on July 6. When those regulations become official sometime after a public comment period ends on Sept. 4, many employers will have to undergo significant restructuring and hiring, pay cutting, and work shifting.

The impetus for this restructuring will be the upward adjustment of the income threshold for overtime exempt employees. Under the proposed regulations, the income threshold will go from $23,660 per year, or $455 per week, to $50,440 per year, or $970 per week, in 2016. That means if an employer has any exempt employees, such as retail store managers, making more than $455 per week but less than $970 per week, they would have to receive a raise to $970 for him or her to continue to qualify as exempted from the FLSA and remain ineligible for overtime, otherwise the employee must be paid time and a half for every hour worked above forty each week.

Few employers are going to be able to provide such raises to all exempt employees with salaries around the current income threshold. In some cases, such raises will be unavoidable, and employers will need to go to great lengths to minimize the fiscal impacts of these new regulations.

The first thing employers – from small to large – will want to do is assess which of their employees are classified as exempt from the FLSA and what their income is. If you have any exempt employees making between $455 and $970 per week, identify whether it is economically sound to continue the exempt status. Depending on the circumstances and the amount of hours generally worked each week, you may want to consider giving them the raise to $970 per week. For the other currently exempt employees, consider limiting their hours to 40 per week and hiring part-time workers to make up for the hours worked in excess of 40 hours per workweek by those formerly exempt employees.

Next, you want to make sure your remaining exempt employees are not being bogged down by traditionally non-exempt duties. Remember, you may be paying these exempt employees significantly more money, so make sure they are predominately performing exempt duties. Generally, up to 20 percent of an exempt employee’s work can involve non-exempt duties, such as filing documents and work part and parcel of the exempt duties. Shift as many of those non-exempt duties as possible to non-exempt employees. You may have to consider hiring additional full- or part-time employees if this redistribution of work pushes too many employees over 40 hours of work per workweek.

Again, try to minimize the fiscal impacts of these new regulations – don’t try to avoid them. Under these proposed regulations, violations of the FLSA could result in employee awards of double the amount of back wages they would have received under the current regulations due to the increase in minimum salaries. Additionally, the FLSA provides for 100 percent liquidated damages as a penalty for violations and attorney’s fees awards to a successful plaintiff.

The costs of complying with the law are many times less than the costs of doing otherwise. Employers should consult with an experienced employment law attorney to determine which employees qualify for exempt status. Employees who believe they have been wrongfully denied overtime pay should likewise consult with an experienced employment law attorney who can prepare and file an FLSA lawsuit.

Mathew B. Tully is the author of the Saratogian’s “Ask the Lawyer” column and a founding partner of the law firm Tully Rinckey PLLC in Colonie. Email employment law-related questions to askthelawyer@1888law4life.com. The information in this column is not intended as legal advice.

With today marking the fourth anniversary of when the Marriage Equality Act took effect on July 24, 2011, ushering in gay marriage in New York State, many of the people who married under the law are heading toward a period that has traditionally been trying for couples: their fourth year.

Despite the popularity of the “seven-year itch,” social scientists have long recognized that divorces tend to peak in the fourth year of marriage.

Out of the married couples in New York State that do not make it to their 10-year anniversary, more each year get divorced during their fourth or fifth year of marriage than any other year.

During the 17-year period ending in 2013 in New York State, annual divorces within the pre-10-year-anniversary period peaked seven times during the fourth year of marriage (i.e., 1997, 2001, 2005, 2009, 2010, 2011, 2012) and six times during the fifth year of marriage (i.e., 1998, 1999, 2002, 2006, 2008, 2013)*

Tully Rinckey PLLC same-sex divorce attorneys are available to discuss:

How the U.S. Supreme Court’s recent Obergell decision, which legalized gay marriages nationwide, has made it easier for same-sex couples to seek a divorce in other states and jurisdictions.

How the Obergell decision potentially expanded the scope of marital assets which can be divided in a divorce.

That while the Obergell decision expanded the scope and protection afforded to gay couples, there could still remain outstanding issues concerning the relationship of New York marriages versus other states and jurisdictions.

For more information, please contact James Schlett at 518-218-7100 (office) or 518-852-1863 (cell) or jschlett@1888law4life.com

Troy Man Tests Saratoga Police

By: Dave LucasMay 19, 2015

A Saratoga Springs Police officer has been suspended after tangling with a First Amendment rights crusader from Troy.

Adam Rupeka, who runs the anti-police website Cop Block, explained on YouTube that he had received a tip from a concerned citizen of Saratoga Springs that the local police department was corrupt and abusive to citizens. So, the story goes, he drove from Troy to Saratoga, where he proceeded to salute a policeman with his middle finger, who then pulled him over.After exchanging words, the officer, identified as Nathan Baker, deployed pepper spray, according to Rupkea’s account, in an effort to coax Rupeka into a more cooperative mode.

Rupeka lashed out, threatening legal action after being spritzed with the irritant.

Mario Cometti with lawfirm Tully Rinckey says Rupeka’s right to freedom of speech allowed him to gesture to the officer. “The person who was arrested may have a valid lawsuit against the police department for malicious prosecution if they continue with this, and for false arrest. The United States Court of Appeals had a similar case in the 2nd circuit, the gist of which was decided January 3rd of 2013 in which a person was pulled over for exactly the same type of thing, for an obscene gesture, and they allowed the lawsuit against the police department to continue. And the 2nd circuit specifically stated that an obscene gesture like giving a police office the finger was not a sufficient and legal basis to pull them over.”

Saratoga Springs police did not return a call for comment. Police Chief Gregory Veitch issued a statement to the press: “I am aware of the video that has been posted on YouTube and on the Facebook page of ‘Capital District Cop Block.’ I take very seriously any allegation of improper use of force made against any officer of the Saratoga Springs Police Department and I have been in contact with Mr. Rupeka regarding this incident.”

Cometti says police officers would be best to ignore obscene gestures from passing motorists. “By now, police officers should be aware that this is something that they should just turn a blind eye to or get a thick skin.”

Rupeka did not respond to a request for comment via email. Melanie Trimble is the chapter director for the New York Civil Liberties Union in the Capital Region. “We’ve heard from him on a message machine and I’ve tried to return his call. We haven’t spoken yet. We’re playing phone tag, so I don’t have any contact with him, I don’t know what he wants from us, so I can’t really comment on that.”

What about citizens using obscene gestures against law enforcement personnel? “While we don’t encourage people to do it, obviously videos can be very helpful in verifying what actually happens in these encounters. At the same time, good things can be recorded, and I think that’s important to remember that not all law enforcement officers behave badly, and we don’t have the hundreds of videos that could be shown to show good behavior too.”

City Police released a statement Monday afternoon to say Rupeka was charged with resisting arrest, along with a traffic infraction of having an obstructed view in violation of section 375-20 of the Vehicle and Traffic Law — an apparent reference to a dashboard camera.

Thruway Passes 2015 Budget

December 19, 2014

ALBANY — The New York State Thruway Authority Board unanimously passed its 2015 budget with a $36 million deficit. The board did not discuss potentially increasing tolls.

Board members went into a closed door executive session after the meeting without answering questions from reporters. Board vice chair Donna Luh said the private meeting was needed to discuss ‘contract negotiations with unions.’

“Executive session should be utilized to protect confidential issues or issues that need to be discussed confidentially before their brought to the public and it should be used sparingly,” said Tully Rinckey, PLLC Partner Mario Cometti. “You can’t just make general comments like ‘oh a personnel issue’. It has to be a little bit more specific and that’s to hold their feet to the fire that they’re not just going in willy-nilly on any issue whatsoever. They don’t have to identify specific personnel or person, but they have to identify with such specificity that there can be accountability.”

“The Thruway Authority board of directors has approved the 2015 budget. As always, board members and Thruway staff will continue to closely monitor all spending and determine what options are available and what actions are necessary to address operations, capital and debt service needs while keeping tolls as low as possible.”

]]>http://www.tullylegal.com/albany-ny/articles/tully-rinckey-pllc-partner-mario-cometti-comments-on-open-meeting-rules-on-cbs-6-albany/feed/0Founding Partner Mathew B. Tully, Esq. on whether or not an Employee can be Fired for Refusing to Act Illegally.http://www.tullylegal.com/albany-ny/articles/founding-partnery-mathew-b-tully-esq-on-whether-or-not-an-employee-can-be-fired-for-refusing-to-act-illegally/
http://www.tullylegal.com/albany-ny/articles/founding-partnery-mathew-b-tully-esq-on-whether-or-not-an-employee-can-be-fired-for-refusing-to-act-illegally/#commentsMon, 06 Oct 2014 17:39:49 +0000Tully Rinckey PLLChttp://www.tullylegal.com/albany-ny/?p=20672Mathew Tully’s Ask the Lawyer column: Can I be fired for refusing to act illegally? By Mathew B. Tully, Esq. October 6, 2014 Question: Can my employer fire me for refusing to participate in its illegal activities or for …

Mathew Tully’s Ask the Lawyer column: Can I be fired for refusing to act illegally?

By Mathew B. Tully, Esq.October 6, 2014

Question: Can my employer fire me for refusing to participate in its illegal activities or for exposing its criminal dealing?

Response: Most states subscribe to the doctrine of at-will employment under which employers are generally allowed to terminate employees without reason or notice, barring any contract stating otherwise and so long as the employer does not discriminate in its decision making. Some states adhere to this doctrine more strictly than others. In Virginia, for example, under what is known as the “public policy exemption,” employers cannot use the at-will employment doctrine “as a shield…to force their employees, under the threat of discharge, to engage in criminal activity,” the U.S. District Court for the Eastern District of Virginia said in Williams v. Virginia (2012).

New York, however, does not recognize such an exception and as such, employers, generally, may use the at-will doctrine as a shield. “[T]here is no exception for firings that violate public policy such as, for example, discharge for exposing an employer’s illegal activities,” the New York County Supreme Court said in Candella v Banco Indus. De Venezuela, C.A. (2009). However, the Court continued, “New York does recognize a narrow exception to its at-will employment doctrine. Specifically, an employer may not terminate an employee when the employee made its employer aware of an express written policy limiting the right of discharge and the employee detrimentally relied on that policy in accepting employment.” Such a written policy may be found in an employee handbook, but the employer’s right to terminate at-will would not be forfeited if that document contains a disclaimer saying it does not represent an employment contract.

Depending on the circumstances, employees who find themselves working for an employer engaged in illegal conduct may be able to blow the whistle and be protected from retaliatory terminations. As the New York Court of Appeals pointed out in Horn v. New York Times (2003), “the strictures of the at-will doctrine itself, a judge-made doctrine, have been subject to a limited number of statutory exception.” The New York State Labor Law, for example, prohibits health care employers from taking retaliatory personnel actions against any employee who “discloses, or threatens to disclose to a supervisor or public body an activity, policy or practice of the employer that is in violation of the law, rule or regulation” that either “creates and presents a substantial and specific danger to the public health or safety, or … constitutes health care fraud.” Similarly, the Civil Service Law prohibits employers from retaliating against public employees who disclose violations to local, state or federal law, and Title VII of the Civil Rights Act protects employees from retaliation when filing an Equal Employment Opportunity Commission complaint or discrimination lawsuit.

Employees who want to blow the whistle on an employer’s illegal activities, or who have been discharged for doing so, should consult with an experienced employment law attorney who could help them make a protected disclosure or prepare a wrongful termination lawsuit.

Mathew B. Tully is the author of The Saratogian’s “Ask the Lawyer” column and the founding partner of the law firm Tully Rinckey PLLC in Colonie. Email employment law-related questions to askthelawyer@1888law4life.com. The information in this column is not intended as legal advice.